The Rome Rail Rd. Co. v. The Mayor & Council Of Rome

• Decision Date: 31 October 1853
• Docket Number: No. 40.,40.
• Citation: 14 Ga. 275
• Court: Georgia Supreme Court
• Parties: The Rome Rail Road Company, plaintiff in error. vs. The Mayor & Council of Rome, defendants.

14 Ga. 275

The Rome Rail Road Company, plaintiff in error. vs. The Mayor & Council of Rome, defendants.

No. 40.

Supreme Court of the State of Georgia

OCTOBER TERM, 1853.

Illegality in Floyd Superior Court. Decided by Judge Jno. H. Lumpkin, August Term, 1853.

The City of Rome was incorporated in 1847. The Charter contained the following section: "The Mayor and Members of Council of the City of Rome shall have full power and author-ity to levy a tax, not exceeding the State tax, on all persons, professions and property within the corporate limits of the city, of whatever kind, whether real or personal, which is subject to taxation by the laws of this State."

The Mayor and Council levied a tax upon the property of the Rome Rail Road Company within the corporate limits of the City; and, payment thereof being refused, they issued execution on the 10th Sept. 1852, directing their marshal to collect the same.

The Company resisted said execution by affidavit of illegality, founded on the following clause in their charter, enacted in 1839:

"That the stock of said Company shall not be liable to any tax, duty, or imposition whatever, unless such, and no more, as is now in Banks of this State."

It was admitted that the tax was imposed upon all the property of the Company within the corporate limits of the City of Rome, and that the Company had no other property there than such as was necessary to carry on their legitimate business.

The case was brought up by certiorari to the Superior Court, and the Court sustained the action of the Council, and dismissed the illegality.

To which the defendant excepted.

Printup for plaintiff in error.

Smith & Underwood for defendant.

By the Court.—Nisbet, J., delivering the opinion.

The tax imposed by the City of Rome was upon the property of the Rail Road Company. It was not upon the Capital Stock, nor was the assessment according to the rate at which Banks were taxed at the time that the Charter was granted. That Charter provides "That the Stock of said Company shall not be liable to any tax, duty, or imposition whatever, unless such and no more as is now in Banks of this State." (See Act in Pamphlet of 1839.) This clause, literally, is unintelligible. What tax, duty, or imposition was in Banks in Georgia at that time, we have no means of knowing. And if we did know, it would be a curious criterion for taxing Rail Roads. There is an omission. Doubtless the Legislature intended to say that the Stock of that Company should not be liable to a tax, except such tax as is now imposed upon the Stock of Banks in this State. So we interpret the clause.— Now by this clause the Capital Stock of this Rail Road is protected from taxation except in a given rate—that is, as Bank Stock was then taxable. It is conceded...